Monthly Archives: January 2007

Blog Lecture No. 69: Parricide, Homicide and Murder

Turns out, I cannot discuss homicide and murder without discussing parricide.

How does the law define these three crimes?

The Revised Penal Code states thus:

Art. 246. Parricide. — Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death.

Art. 247. Death or physical injuries inflicted under exceptional circumstances. — Any legally married person who having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro.If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.

These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents.

Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article.

Art. 248. Murder. — Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity.

2. In consideration of a price, reward, or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity.

5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

Art. 249. Homicide. — Any person who, not falling within the provisions of Article 246, shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.

What is parricide?

Basically, it’s killing one’s father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse. But killing a spouse under the circumstances in Article 247 is not parricide but a homicide under exceptional circumstance, as stated in this previous blog lecture.

What is murder?

Basically (again), it’s killing aggravated by the following circumstances:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity.

2. In consideration of a price, reward, or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity.

5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

What is treachery (or alevosia)?

As the law states it:

There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.

The operative word here is “insure” execution and insure such execution without risk to himself from the possible defense of the victim.

Can you give an example?

The classic example is hitting the person when he’s not looking, or from behind.

What is evident premeditation?

In its most simplest terms, evident premeditation means the killer really intended to kill his victim, that he has thought about it calmly, coolly and dispassionately, which clearly show his lack of remorse in the killing.

In jurisprudence, there is evident premeditation (hence, murder) when there is evidence that:

1. The killer has made a decision to kill;
2. He has clung to such decision;
3. There is a lapse of time where the killer had the opportunity to reflect on the consequences of his decision to kill and perhaps still desist.

But still killed his victim.

Can you give an example?

Sure.

When a killer decided to carry out his act, meticulously planned how he was to do it, prepared his tools to carry it out (like cleaned his gun, or any weapon of choice), there is evident premeditation and hence the crime is murder not homicide.

So what is homicide?

It’s basically a killing that cannot be classified as parricide or murder (or even an exceptional homicide under Article 247 of the Revised Penal Code). When you can’t classify it under anything else, it’s homicide.

Why do we need to distinguish?

Parricide and murder are capital offenses and hence, not bailable. Homicide is still bailable.

If you charge a person with homicide at the outset and is already arraigned for homicide, he cannot be convicted of a higher crime like murder or parricide even if the prosecution was able to prove circumstances to classify the crime as such. But if you charge murder or parricide but you could only prove homicide, the accused would be convicted of homicide since it is subsumed in murder or parricide.

Once arraigned, the charge can not be changed from homicide to murder anymore.

So now you know why the prosecution always guns for a higher offense. And why the defense would want to get an arraignment on the lesser offense.

What do you call killing an insect?

Insecticide.

What do you call killing then throwing the victim in the river?

Riverside.

What do you call killing then throwing the victim in the middle of the road?

Roadside.

What do you call killing then throwing in the trashcan, but missed?

Littering.

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Blog Lecture No. 68: State Witnesses

Hello! It’s been a while you know.

So let’s get started on another year of blog lectures, shall we?

Don’t worry this will be short.

Distinguish a state witness from an ordinary witness?

A state witness participated in the prosecuted crime. An ordinary witness is not necessarily a participant to the crime.

Where is the rule on state witnesses in the Philippines?

It’s found in Republic Act No. 6981, known as the Witness Protection, Security and Benefit Act and Rule 119 of the Revised Rules on Criminal Procedure.

How do you qualify as a state witness?

Section 10 of the law states:

Section 10. State Witness. – Any person who has participated in the commission of a crime and desires to be a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present:

 

(a) the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code or its equivalent under special laws;

(b) there is absolute necessity for his testimony;

(c) there is no other direct evidence available for the proper prosecution of the offense committed:

(d) his testimony can be substantially corroborated on its material points;

(e) he does not appear to be most guilty; and

(f) he has not at any time been convicted of any crime involving moral turpitude.

An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Section 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused, so that he can be used as a State Witness under Rule 119 of the Revised Rules of Court.

Sections 9 and 10 of the Revised Rules of Court referred to in this law are now Sections 17 and 18 of the same Rules which read as follows:

Section 17. Discharge of accused to be state witness. — When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that:

 

(a) There is absolute necessity for the testimony of the accused whose discharge is requested;

(b) The is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused;

(c) The testimony of said accused can be substantially corroborated in its material points;

(d) Said accused does not appear to be the most guilty; and

(e) Said accused has not at any time been convicted of any offense involving moral turpitude.

Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence.

 

Section 18. Discharge of accused operates as acquittal. — The order indicated in the preceding section shall amount to an acquittal of the discharged accused and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for the discharge.

What is a grave felony?

Article 9 of the Revised Penal Code distinguished grave, less grave and light felonies, as follows:

Article 9. Grave felonies, less grave felonies and light felonies. — Grave felonies are those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive, in accordance with article 25 of this Code.

 

Less grave felonies are those which the law punishes with penalties which in their maximum period are correctional, in accordance with the above-mentioned article.

 

Light felonies are those infractions of law for the commission of which the penalty of arresto menor or a fine not exceeding 200 pesos or both, is provided.

What are afflictive penalties?

These are reclusion perpetua to prision mayor, according to Article 25 of the Revised Penal Code.

So I participated in the crime of, let’s say, plunder. I want to turn state witness. How do I go about it?

Of course you have to qualify first, given the requisites of the law. This means:

1. If the crime is not grave, NO DEAL!

2. If the testimony is not necessary, that is, the prosecution can prove the case without the testimony, NO DEAL!

3. If the testimony cannot be verified by other evidence (object or testimonial), NO DEAL!

4. If the snitch is actually the mastermind of the plot, NO DEAL!

5. If the snitch has been convicted of a crime like estafa before, NO DEAL!

If the snitch qualifies, he executes a sworn statement describing in detail the manner in which the offense was committed and his participation therein.

If after said examination of said person, his sworn statement and other relevant facts, the prosecution is satisfied that the requirements of this as and its implementing rules are complied with, it may admit such person as a state witness.

The prosecution then files a motion in court to discharge the snitch in the criminal case as a state witness. If granted, that discharge operates as an acquittal, unless he does not live up to the end of his bargain, which is if the snitch fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for the discharge.

What about co-principals or co-conspirators?

Depending on the evaluation of the prosecution and the court, if these snitches do not appear as the most guilty, then they may become state witnesses. But then again, an act of a co-conspirator is the act of all so guilt becomes equally distributed. Ruling on the amount of guilt then becomes the judgment call of both prosecution and the court.

Tomorrow, I’ll discuss the difference between homicide and murder.

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Backfire

All of the sudden, the Office of the Ombudsman went into hyperdrive. Hence, the recent rash of “summary executions” on public officials aligned with the opposition here.

First, people may be wondering if this office really has to power to do that when they still have to file the criminal case with the Sandiganbayan.

Unfortunately, it can.

What the Office of the Ombudsman did it rule on the administrative aspect of the complaints against these officials and then exercised the penalty for them, which is dismissal. It’s similar to a private company where the boss fires his employees for stealing money (or whatever grave offense). The company can still file a criminal case against said employee but it can already lay the good ‘ole Donald Trump catch-phrase on that erring employee.

However…

These actions may backfire as these so-called “erring officials” (I’m beginning to hear that favorite “Let him cast the first stone…” catch-phrase of Jesus Christ…) can now portray themselves as underdogs and martyrs, thereby securing their re-election bids. These people may just have won the elections.

And as discussed before, “the rule is that a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor.” (Aguinaldo vs. Santos, G.R. No. 94115, 21 August 1992)

Whew! Did I just make my first blog-lecture for the year without labeling it such?

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